Court says minor’s ‘consent’ to sex with teacher is no defense for school district

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A Los Angeles jury’s denial of damages to an eighth-grade student who was led into having sex with her teacher prompted the Legislature to change state law: A minor’s “consent” to sex with an adult in a position of authority cannot be used as a defense in a civil suit.

That law takes effect next year. But on Wednesday, a state appeals court said the trial judge never should have let the jury consider the girl’s consent under current law, and granted her a new trial in her suit against the school district.

“The victim of a crime does not bear any responsibility for the harm she suffers from the crime,” the Second District Court of Appeal said in a 3-0 ruling. “Thus, a minor’s purported consent to a crime is simply not relevant” to her claim that the district should have prevented the crime.

The girl was 13 when her math teacher at Edison Middle School, Elkis Hermida, began exchanging text messages with her that later turned sexual, the court said. He invited her into his classroom when it was empty, told her to close the door and started hugging and kissing her.

He first invited her to have sex in March 2011, when she was 14. Three of their meetings took place in motels and one in a classroom, where he had arranged the furniture so they could not be seen if anyone entered the room, the court said. They also exchanged nude photos.

One of the girl’s friends found out about their relationship and reported it to a teacher in May 2011. Hermida, 28, was arrested, pleaded no contest to lewd acts with a minor, and was sentenced to three years in prison.

Other students said Hermida talked to girls in his class about his personal life and regularly hugged female students. A teacher said she had told the school principal she once saw Hermida lying on his back on a table in class, near some female students. Hermida admitted hugging students and testified that other teachers were in the hallway, but that no one from the school ever said anything to him about it.

The Los Angeles Unified School District, however, argued that school officials had no reason to believe Hermida posed a danger to the girl and bore no responsibility for his actions. A Superior Court jury agreed in a 10-2 verdict rejecting her claim for damages.

In Wednesday’s ruling, the appeals court said Superior Court Judge Lawrence Cho’s instructions to the jury contained several errors that were grounds for a new trial.

One was his instruction, requested by the school district, that any damages to the girl could be reduced if jurors decided she had consented. Another allowed evidence of the girl’s sexual history, which the court said was legally irrelevant and prejudicial. And the court said Cho also wrongly told jurors that the girl and her lawyers, to prove that school officials should have stepped in, had to show that Hermida had a “dangerous propensity to sexually abuse minors.”

There was evidence that Hermida had the “potential” to abuse minors, such as his acts of openly hugging female students, discussing his personal life and rearranging his classroom furniture to create a hidden alcove, the court said. But requiring proof of a “dangerous propensity” for abuse was excessive, and would have been impossible for his first known victim to prove, the court said. Presiding Justice Paul Turner dissented from that portion of the ruling.

The court recognized that “children should not be blamed for their own victimization,” said Frank Perez, a lawyer for the girl. Referring to the school district, he said it was outrageous that “when they fail to supervise a teacher, they have the audacity to then blame the student that they compel to be in the school.”

The district declined to comment on the ruling, which could be appealed to the state Supreme Court.

The law prompted by the jury verdict, SB14 by state Sen. Ricardo Lara, D-Bell Gardens (Los Angeles County), passed both legislative houses without any opposing votes and was signed by Gov. Jerry Brown in July. It takes effect Jan. 1.

The ruling can be viewed here: http://www.courts.ca.gov/opinions/documents/B253983.PDF.